Advantages and Disadvantages

In reality, it is much more accurate to say that First Nations people living on reserve have rights that differ from those of other citizens. Although in certain respects First Nations people have advantages that others do not (certain tax exemptions, for example), they are also deprived of a number of rights.

The fundamental right of every person to the peaceful enjoyment and free disposition of his property is a good example of this deprivation. This right is recognized in the United Nations International Covenant on Civil and Political Rights, which was ratified by Canada. In areas of Québec jurisdiction, this right is also guaranteed by section 6 of the Québec Charter of Human Rights and Freedoms. However, the exercise of this right is not fully guaranteed on reserves, which are under federal jurisdiction. For example, the right is not guaranteed with respect to property and transfers of real property, or with respect to testamentary matters. The above table, which compares the situation of a First Nation person living on reserve with the situation of a citizen living in a municipality provides a good illustration of the situation.

Any person living in a municipality who has the means to do so may purchase land. The transaction is simple and takes place between individuals. This is not the case on reserves. First Nations people are deprived of the right of land ownership. They have only a limited right of possession or occupation. Nor are land transfers subject to the free-market system as in the case of a municipality.

The right of seizure on reserves is another telling example. The property of an Indian or a band cannot be seized. At first glance, this could seem to be an advantage. In reality, it is a major disadvantage in terms of economic development. With no right of seizure, a First Nations person cannot borrow, contract a mortgage or have free access to consumer credit. It is not surprising that few Aboriginal businesses have been able to develop.

Members of first nations living on reserve have different rights from other citizens. They are also deprived of certain rights.

Situation of an Indian living on reserve Situation of a citizen living in a municipality
Land ownership and possession
  • A right of possession or occupation
  • The Minister of Indian Affairs and Northern Development issues certificates of possession and occupation
  • A right of transfer to the band or another member of the band only; the transfer is not valid unless it is approved by the Minister
  • Reserve lands are not subject to any legal seizure
  • They cannot be mortgaged, hence limiting borrowing ability
  • A right of ownership
  • An owner obtains an actual property title
  • Any landowner may sell freely to anyone he or she so desires, including to one or more persons residing outside the municipality
  • Right of seizure
  • Mortgage right and borrowing capacity
Descent of property
  • The Minister has exclusive jurisdiction over testamentary matters regarding Indians
  • A will has legal effect only when approved by the Minister
  • Any person of sound mind may bequeath his orher property to anyone at all
  • Any holographic or notarial will generally have legal effect after death
Property of mentally incompetent persons
  • The Minister is granted exclusive jurisdiction over the property of an Indian who is mentally incompetent
  • The familyor, failing this, the Public Curator has jurisdiction over the property of a mentally incompetent person
Property of miner children
  • The Minister may administer all property to which the minor children of Indians are entitled, or ensure the administration thereof, and may appoint a guardian for such purpose
  • The parents of a minor child, or failing this, the person acting in their stead (the guardian) are responsible for the property of minor children
Alienation of property
  • The property of an Indian or a band located on a reserve cannot be the subject of lien, a pledge, a mortgage, or a seizure
  • All property may generally be mortgaged on a reserve cannot be the subject of lien, or seized
Access to consumer credit
  • Because the real and personal property of an Indian living on reserve is not seizable, access to consumer credit and even the obtainment of a credit card often prove impossible, regardless of the Indian’s income and solvency
  • Any solvent person holding real or personal property as security can generally have access to consumer credit and can obtain a credit card
Taxation
  • Ordinarily, no Indian or band is subject to taxation on the ownership, occupation or possession of a property on a reserve. However, the band council may make by-laws for local purposes regarding land on the reserve, including rights to occupy, possess or use such land
  • In a municipality, owners are subject to municipal taxes and school taxes
Taxation (Retail sale)
  • Exemption from sales tax when the sale is made on a reserve between Indians or to an Indian
  • Personal property other than a motor vehicle purchased off reserve by an Indian is tax-exempt if delivered by the seller to the reserve for consumption or other use
  • GST and QST is applicable on the sale of products and services throughout the province of Québec
Income tax
  • Exemption from income tax when work is performed on the reserve
  • Exemption from income tax when work is located off reserve, but only for an employer located on the reserve
  • An Indian’s income is taxable when work is performed off reserve for an employer located off the reserve
  • An Indian’s employment insurance benefits are taxable only if they are paid on the basis of taxable income
  • Income from employment or benefits are taxable
  • The employment insurance benefits of every citizen are taxable

(Source: Pierre Lepage, Commission des droits de la personne et des droits de la jeunesse, February 1994)

It’s RRSP Time – Everywhere but in First Nations Communities

Every year, starting in January, financial institutions and other accredited agencies such as the Fonds de solidarité des travailleurs du Québec run advertising campaigns encouraging consumers to purchase registered retirement savings plans (RRSPs). There is no doubt that RRSPs are a good way to plan one’s retirement income. However, the primary incentive for RRSP campaigns is the tax savings it affords individual and families who contribute to an RRSP. But a First Nations person who works in his or her community cannot benefit from the tax advantages of an RRSP. If you don’t pay income tax, you can’t save on tax. It’s that simple! It’s no wonder, then, that so few First Nations people have retirement investments. From that point of view, non-Aboriginal Quebecers are clearly better off.

Moreover, the scope of the privilege conferred by the income-tax exemption has been greatly exaggerated. In the majority of First Nations communities, this exemption is taken into account in determining salaries. To what extent is this privilege really a privilege if salaries are appreciably lower as a result? Hence, we should be careful about commenting on it. Once again, we cannot isolate one component of the Indian Act without taking into account all components of the guardianship regime.

Moreover, the exemptions set out in the Indian Act apply only to registered Indians, and not to all Aboriginal people. For example, the Inuit are not subject to this law of exception and therefore pay taxes like anyone else. We will come back to this in Repeated Attacks on a Way of Life.

Two Aboriginal women became known for their fight against the sex-based discrimination contained in the Indian Act. Sandra Lovelace (left), a Malecite from New Brunswick, lost her Indian status in 1970 after she married a non-Indian. She wouldn’t have lost this status had she been a man who married a non-Indian woman. During the same period, Janet Corbière-Lavell (right), an Ojibway from Ontario who had been in the same situation, made an unsuccessful appeal before the Supreme Court of Canada to have the discriminatory article in the Indian Act invalidated. In a split decision in 1973, the Supreme Court ruled that the Canadian Bill of Rights did not take precedence over the Indian Act. This defeat and the lack of any further domestic recourse saw Sandra Lovelace take her case to the United Nations Human Rights Committee where she won. In June 1990, in Montréal, the two women received the Robert S. Litvack Human Rights Award.

Photo credit:  Jean-Yves Létourneau, La Presse

The Haudenosaunee, also known as the Six Nations Iroquois Confederacy, issues its own passports (right), an affirmation of its independence and political sovereignty. For Iroquois representatives there is no question of presenting a Canadian passport.

Photo credit:  Roger Lemoyne

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